Scalia's Dissent in Obergefell (Same-Sex Marriage) Case Would Criminalize Justice Thomas's Marriage

06/30/2015 01:04 pm ET | Updated Jun 30, 2016

Justice Antonin Scalia's dissent in Obergefell v Hodges -- the case that declared that denying same-sex couples marriage licenses violated the equal protection and due process clauses of the Fourteenth Amendment -- is best known for its tantrums and, as usual for the politician Scalia is rather than the jurist he is supposed to be, its hypocrisy.

Missed in Scalia's childish histrionics was his so-called 'originalist' approach for interpreting the Constitution (when it suits him, that is -- those who voted on the Second Amendment could not possibly have been thinking about semi-automatic assault weapons or 25 bullet magazines, but Scalia holds that those are protected).

In Obergefell, Scalia asserts that he knows that the people who voted to approve the Fourteenth Amendment in 1868 were not thinking about same-sex marriage when they voted, and, therefore, the original intent of that Amendment prevents Scalia from finding a right to same-sex marriage in its guarantee of equal protection under the laws.

That same approach, however, would make Justice Clarence Thomas's interracial marriage illegal, and subject to criminal prosecution in Virginia, the Thomas's state of residence. As assuredly as voters in 1868 were not thinking about gay marriage when they voted for the Amendment, they certainly were not approving it to enable interracial marriages.

Interracial marriage, "miscegenation," was not only impermissible in Virginia, it was a criminal offense subject to time in jail. Citing the equal protection clause of the Fourteenth Amendment, the Supreme Court overturned the Virginia and other state statutes in the poetically-named case, Loving v. Virginia, in 1967.

According to Justice Scalia's reasoning, the people voting on the Fourteenth Amendment in 1868 did not contemplate interracial marriage as what they were protecting by passing it. Hence, Scalia would have to say that Loving was wrongly decided.

That would make Scalia's right-wing buddy, Justice Clarence Thomas and his wife Ginny, subject to imprisonment in Virginia.